A New Reading of Collective Actions against Unfair Terms

The Action for an Injunction as a European Remedy

The Invitel case allowed the ECJ to comment for the first time on the principles of the system of legal redress with regard to Directive 93/13/EEC. A central question is the Europeanization of the action for injunction which in EU law belongs to the acquis communautaire, enshrined in the substance-related directives on unfair terms and commercial practices but also in the so-called "Injunctions Directive", Directive 2009/22, which puts emphasis on the procedural side of the remedy. Whatever the collective legal redress might look like, the action for injunction represents the benchmark according to which national collective remedies have to be evaluated. Despite this being widely known, and although the action for injunction is well recognized as an instrument of collective legal redress in the Member States, beyond this diffused consensus disagreement prevails.

The parameters in the relevant directives remain vague. Each directive features a slightly different formulation.[1] Neither of them includes a definition of the distinctive elements of an action for injunction nor of the parties who have the right to file a suit and under what conditions. There is also a lack of information on what the action for injunction aims at and on which role it plays with regard to the substantive law to which it is assigned. Readers are furthermore left in the dark as to the relationship between the action for injunction and individual remedies. In brief, the action for injunction represents a marvellous field for debates about legal theory and dogmatism, not only within the Member States but also for comparisons of European or international legislation.[2]

In Invitel AG Trstenjak took advantage of the opportunity to establish a basic EU position on the action for injunction, which will engage the case law of the Member States into the future. This applies all the more as the ECJ has not only followed the AG on the result, but refers to the statements of the AG (in recital 38 the ECJ refers to recital 51, in recital 39 to recitals 57-61 of the AG). The reasoning of the AG promotes a clear distinction between the three categories of supra-individual legal redress:

(1) the procedure for a finding of the unfairness of a term (recital 64),

(2) the action for injunction aiming at the protection of the collective interest of consumers (recital 67) - all means deemed by the Member States to be 'appropriate and effective to prevent the use of such terms' in terms of Art 7 of Directive 93/13/EEC (recital 75) - and

(3) the refund of costs and expenses charged (recital 73), in the form of the so-called claim of skimming-off procedure to recover unlawful profits -Gwinnabschopfungsanspruch and/or via an order to refund the individual consumers.

The ECJ followed this differentiation in the way it built its argument.

Interlocking of Individual and Collective Redress via Article 7 Para 2 of Directive 93/13/EEC

The differentiation is important, since there are connections between the finding of unfairness and the action for injunction for the protection of consumers' interests. For the first category Article 6(1) of Directive 93/13/EEC plays a decisive role. According to its wording, this rule is not restricted to individual procedures but, due to Article 7(2) of Directive 93/13/EEC, it is deeply linked to collective legal redress (AG recital 50). In this significant section the ECJ adapts the argumentation of the AG's recital 51 (ECJ recital 38). In view of its crucial importance it deserves to be quoted in full:

AG (recital 51) However, in order effectively to achieve the objective of consumer protection in proceedings for collective judicial protection, the legal consequence of the non-binding nature of the term laid down in Article 6(1) of Directive 93/13 must also apply if the persons or organisations named in Article 7(2) of Directive 93/13 have brought proceedings in the interest of the consumers concerned, because otherwise a collective action would be of little benefit to consumers. It must not be forgotten that in abstracto verification, as an instrument of collective judicial protection, was designed to eliminate unfair terms 'drawn up for general use'. These terms are therefore intended for use in a large number of consumer contracts. They can therefore be combated effectively only if the decision of the national court finding a particular term to be unfair is accorded fairly wide applicability. [emphasis H-W M]

ECJ (recital 38) The effective implementation of that objective requires, as the AG essentially noted in point 51 of her Opinion, that terms of the GBC of consumer contracts which are declared to be unfair in an action for injunction brought against the seller or supplier concerned, such as the term here at issue in the main proceedings, are not binding on either the consumers who are parties to the actions for an injunction or on those who have concluded with that seller or supplier a contract to which the same GBC apply. [emphasis H-W M]

  • [1] Art 7 Directive 93/13, art 11 Directive 2005/29, art 4 Directive 2009/22.
  • [2] The list of open questions is long: Is the claim of substantive or procedural nature, a question which leads to a lot of difficulties in a cross-border context, cf. A Stadler, Juristenzeitung (2009) 121.
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